JUDICIAL REVIEW: A WAY OF CONTROLLING GOVERNMENT?

Recent concern among administrators about the effect of judicial review on their work is exaggerated. The cases show that judges are aware of the pitfalls of too much judicial intervention. Judges do not control government. To understand their role, we must distinguish three different judicial techniques (here called directing, limiting and structuring) which are usually conflated under the title of 'control'. In doing their jobs, judges generate principles to guide administrative procedures and judge their legality. That can make a useful contribution to structuring administrative decision-making, but only if the civil service is as sensitive to the potential value of judicial review as judges are to its possible dangers.     

JUDICIAL REVIEW AND THE 'CONTROL OF GOVERNMENT'

Administrative law is traditionally said to be concerned with the 'control of government', and judicial review of administrative action is said to be the primary mechanism of 'control'. It is argued that judicial review fails in any significant sense to control central government. Explanations for this include the ability of the executive, acting through the legislature it controls, to reverse or nullify judicial decisions: the characteristics of the civil service which, in the absence of any significant legal training as a condition of employment, tend not to be aware of the significance of administrative law principles; and the imprecision of those principles, which make them inadequate as a guide to determine administrative processes. If administrative lawyers do in fact seek to establish control over central government, some at least of those problems must be faced, perhaps by the creation of a body of principles of administration.     

THE POLITICAL AND ADMINISTRATIVE CONSEQUENCES OF JUDICIAL REVIEW

Academic analysis of judicial review is confined largely to juridical commentaries in legal journals. This article, written from an administrator's viewpoint, examines its consequences for the power of government, for administrative behaviour, for constitutional dynamics, and for the scientific study of policy-making. It distinguishes a four-fold effect on administrators, including a substantial element of inhibition, and highlights the uncertainty created by the incremental and inconsistent development of the principles of judicial review. In constitutional terms, while the courts eschew national security and economic policy, they have in other fields explicitly created a process of accountability parallel to that of Parliament, and have resisted statutory attempts to limit their jurisdiction. Analysed in terms of political science, judicial review imposes unrealistic standards of administrative conduct, entrenches the role of pressure groups, and places on public bodies legalistic requirements that they may not be equipped to fulfil. The combination of these pressures, exacerbated by further expansion of the scope of the judicial review, are likely to increase friction between judiciary and government, possibly precipitating a crisis.     

CHANGES IN JUDICIAL REVIEW: AN OUTSIDER'S REFLECTIONS

Public Administration has asked me to comment on the articles discussing recent developments in judicial review contained in this special issue. This is a most generous invitation, for which I would like to thank the editors, in particular Professor Michael Lee. This is a daunting task too. Before I attempt it, I wish to say that the following are the comments of an outside and foreign observer who had recently the opportunity to study the English legal system.
I propose to consider the questions raised in three parts; firstly, the manner in which the recent reforms have been introduced and their likely consequences; secondly, the practical effects of judicial review on the administration; and thirdly, the cultural, social and political factors that influence the shape and role of administrative law.     

ADMINISTRATIVE LAW AND JUDICIAL REVIEW – THE PRACTICAL EFFECTS QF DEVELOPMENTS OVER THE LAST 25 YEARS ON ADMINISTRATION IN CENTRAL GOVERNMENT

The writer of this article served in the legal civil service from 1951–1984, mainly in the Board of Trade and its successor departments but from 1980–1984 as Treasury Solicitor. The article reflects his personal views based on this experience. Its theme is that, although access to the courts has been made easier for the citizen aggrieved by an administrative decision, and court procedure has been greatly improved, the course of administration has been less dramatically affected – in fact little, if at all, by some important earlier cases. Nevertheless the spirit of administrative law is now becoming more widely diffused, the areas which are not subject to review are becoming less and a number of specific doctrines have been developed which affect administration. The following are particularly emphasized: (1) the courts’restrictive view of the ‘Wednesbury’ doctrine and their tendency to find other grounds to overide decisions which they find objectionable or unreasonable – a tendency which causes real administrative difficulty; (2) the recently enunciated doctrine of legitimate expectation whose limits are uncertain but which may have considerable effect on administration in future; and (3) the requirement that a person affected by a policy should be given an opportunity to show that he is a special case. Finally the writer has to emphasize that his personal experience ended in August 1984 when he retired. In a large organization such as the civil service a change of ethos is slow. He is assured by some, particularly Mr John Bailey cb , his successor as Treasury Solicitor, who has read this article in draft, that he understates the degree to which concepts of administrative law are infusing the whole spirit of administration, and even more directly, the short-term effects in individual departments such as the Department of the Environment which has been the subject of long-running campaigns directed by other bodies against it through the courts.     

A MAYOR FOR PARIS – AN EARLY EXAMPLE OF DECENTRALIZATION

This paper analyses the 1975 municipal reform which gave Paris its first elected Mayor since the days of the revolutionary Commune. Local government reform has proved notoriously difficult in France and the policy-making process in this case was complicated by the political situation, following the death of President Pompidou, in April 1974. His successor, Giscard d'Estaing, attempted to marginalize the Gaullist Party and to govern from the centre. Paris was the testing ground for this political strategy. The capture of the mayorship by the Gaullist Jacques Chirac was a personal humiliation for the President.
The reform demonstrates the reluctance of French governments, compared with their British counterparts, to radically mould their local government institutions. In particular, the constant reference during the debate to the words 'Mayor' and 'Commune', which have great symbolic power in France, arguably prevented the elaboration of an institutional structure adapted to the peculiar needs of the Paris urban area.     

CONTRACTING FOR PUBLIC SERVICES: A REVIEW OF ANTIPODEAN EXPERIENCE

In this article the evolution of competitive tendering and contracting ( ctc ) policy in Australia and New Zealand is documented and evaluated. Policy implementation at Commonwealth, State and local levels in Australia is examined in some detail. This was followed by a similar analysis of the two levels of government in New Zealand. An overall appraisal of the impact of CTC on efficiency and effectiveness of service delivery is undertaken, based on disaggregated contracting surveys of State and Commonwealth government agencies as well as a wide range of other sources of information. The key findings, which are summarized in tabular form, indicate that the pace of implementation has varied widely across jurisdictions. This variability is largely a function of differences in political orientation of the governments in power, particularly in Australia. Despite these differences, the findings suggest that efficiency gains stemming from the application of ctc are substantial and widespread. Furthermore, quality of service has not, in general, been sacrificed to cost reductions. There is every indication that the current rate of progress of policy implementation is set to continue. In Australia, it may even accelerate with the onset of a national competition policy which will place competitive pressures on providers of public services.     

IMPROVING UK PUBLIC SERVICES: A REVIEW OF THE EVIDENCE

Over a number of years in the UK, public service improvement has been at the centre of both Conservative and Labour policy. Keen to make improvements in public services, the current Labour government is pursuing this issue more strongly than any other. This paper examines the concept of improvement and reviews the academic literature which has empirically assessed improvements in a range of public services. Drawn from over 50 studies of improvement, the evidence highlights seven determinants or improvement ‘triggers’ which have been put in place and which have had a positive effect on a public service. These include quality frameworks and public participation forums. The paper reviews the evidence and evaluates the strengths and weaknesses of the studies themselves. The findings of the paper indicate that, despite a political drive to improve public services, there is insufficient evidence available on ‘what works’ in bringing about improvement. The need for sustained research in this area is emphasized and conclusions are drawn on a way forward.     

EXPLAINING UNINTENDED AND UNEXPECTED CONSEQUENCES OF POLICY DECISIONS: COMPARING THREE BRITISH GOVERNMENTS, 1959–74

The vulnerability of policymaking to unintended and unanticipated consequences has been documented since Thucydides. Yet we still lack integrated conceptual and explanatory accounts of their variety and aetiology. Adequate consideration of putatively unintended and unanticipated consequences requires evidence about policymakers' prior intentions and anticipations, the factors affecting their cognition, and the forces bearing upon responses to attempted execution of policies. This study uses archival evidence about three post‐war British governments to examine hypotheses derived from neo‐Durkheimian institutional theory. It compares relationships between policymakers' informal social organization and their biases in framing anticipations and intentions in three policy fields. It shows that, contrary to widely made claims about a ‘law’ of unintended consequences, neither unintended nor unexpected consequences are random, but reflect basic patterns in variation and aetiology which the neo‐Durkheimian theory explains well.     

PRIVATIZATION UNDER MRS. THATCHER: A REVIEW OF THE LITERATURE

Public Administration not only publishes original articles but it also seeks to provide material which will be useful to teachers and students alike. In order to strengthen this facet of the journal, the editors are introducing an occasional series of articles which will review the current state of the literature in the various sub-fields within the subject of Public Administration. This contribution by David Marsh reviews the 'state of the art' on privatization in Britain. The objective is to draw together the extensive literature in a systematic fashion by identifying key texts and the main research findings. His review examines the origins of privatization, the several meanings of this term, the objectives of government policy, and assesses the extent to which objectives have been realized. He also draws attention to lacunae in the literature and important areas requiring further research.
The editors would welcome suggestions for future articles in this series. Any prospective author should contact the editors to discuss the proposed topic and, where feasible, we will provide assistance by obtaining books for review.     

THE MANAGEMENT OF CHANGE IN PUBLIC ORGANIZATIONS: A LITERATURE REVIEW

This article presents a review of the recent literature on change management in public organizations and sets out to explore the extent to which this literature has responded to earlier critiques regarding the lack of (public) contextual factors. The review includes 133 articles published on this topic in the period from 2000 to 2010. The articles are analysed based on the themes of the context, content, process, outcome, and leadership of change. We identified whether the articles referred to different orders of change, as well as their methods and theory employed. Our findings concentrate on the lack of detail on change processes and outcomes and the gap between the common theories used to study change. We propose an agenda for the study of change management in public organizations that focuses on its complex nature by building theoretical bridges and performing more in‐depth empirical and comparative studies on change processes.     

DENTISTRY AND MANAGEMENT OF THE NATIONAL HEALTH SERVICE: 1974–1982

The paper examines some inter-relationships between dentistry and the national health service, particularly the way in which it was slotted into the management arrangements in 1974. The aspirations of dentists during the pre-1974 period are compared with government intent and the management structure achieved. Analysis of the managerial or officer structure at each level of the service highlights the ways in which the patterns laid down for dentistry varied from the norm. Dentists' expectations and the officially declared intent were seldom synonymous; both were very different from the final system. In some ways dentists lost out in relation to the management arrangements. Their major organization was at area level rather than in the health districts. Whether or not this unusual structure was to the disadvantage of the profession and of dental care, time alone would have told. However, no such assessment is now possible. In April 1982 area health authorities disappeared: area dental officers have therefore been abolished.     

DECISION AND ORGANIZATION – PROCESSES OF STRATEGIC DECISION MAKING AND THEIR EXPLANATION

Strategic decisions shape the course taken by an organization, whether it be in the public sector or the private sector. An analysis is reported of 150 cases of the making of such decisions in both publicly and privately owned organizations. Three types of decision-making process are identified, sporadic, fluid , and constricted. Differences due to the nature of the subject matter under decision, and to the nature of the organization, are examined. Differences in the propensity to sporadic decision-making processes in the administration of publicly owned organizations are described.     

THE TREASURY AS THE CENTRAL DEPARTMENT OF GOVERNMENT, 1919–1939

Sir Warren Fisher, Permanent Secretary of the Treasury from 1919 to 1939, tried to make the Treasury a 'general staff', for all of Whitehall. He was official head of the civil service, and his Department co-ordinated policy by persuading ministers to decide priorities within a balanced budget. Treasury advice on what policy should be was influential, partly because of the absence of a fully developed Cabinet Office or Prime Minister's Office. Treasury control of expenditure was also necessary to ensure that spending departments conformed to Cabinet decisions on priorities. The Treasury exercised a powerful influence, however, only so long as the Cabinet accepted the financial orthodoxy of balanced budgets.     

THE EDUCATION OF THE TREASURY: THE MEDIUMTERM FINANCIAL STRATEGY 1980–84

The first Thatcher government introduced an innovatory macro-economic plan – the medium-term financial strategy (MTFs) – in March 1980. It was the most notable example of how the Government sought to change the direction of post-war policy. This article traces the origins and formulation of the strategy, noting that it was Treasury-imposed, and monetarist in orientation. During its implementation however it was substantially modified. The phrase 'pragmatism and continuity' best describes this process. Aspects of macro-economic policy are introduced to develop this theme. There is clear evidence that the Treasury was 'educated' by the problems encountered: the objectives of the MTFS were not uniquely achievable simply because they were deliberately limited in scope. Nevertheless, the strategy has survived as a policy framework and freed from its monetarist dogma remains a useful means of co-ordinating objectives.     

Ministerial Resignations 1945–97

This article reports on data collected on ministerial resignations and non-resignations 1945–1997. It analyses the reasons why ministers resign and patterns that emerge in terms of the types of issues that are more likely to lead to resignation, and variances between different Prime Ministers, parties and over time. It provides the first fully quantified analysis of ministerial resignations in Britain in the post-war period to enhance the impressionistic analyses which have been offered before.